The conviction of a politician for a crime always brings a sigh of relief to a society plagued by the misdeeds of those in power. Politicians have always given people a reason to harbour such sentiments against them. However, when someone gets punished for expressing their thoughts and ideas, it should make us pause and reflect. The case of Rahul Gandhi being convicted for defamation is one such peculiar example.Speaking at a political rally in Karnataka in April 2019, the Congress leader had tried to highlight the frauds committed by Nirav Modi and Lalit Modi and tagged them with the name of Prime Minister Narendra Modi. He had said: “How come all thieves have ‘Modi’ in their surnames?”Purnesh Modi, a Bharatiya Janata Party MLA from Gujarat, inferred that Gandhi’s remark caused defamation and a loss of reputation to the entire Modi community.Congress president Rahul Gandhi at an election rally. Credit: PTIIn the case of defamation, it is required that the person affected by the statement lodges a complaint about the loss suffered to establish an offence. However, none of the affected people had come forward.Renowned legal scholars have highlighted this issue, and therefore, the judgments of the District and Gujarat high court demand attention and scrutiny.Secondly, he was sentenced to the maximum punishment of two years. Interestingly, this is enough to fulfil the criteria for disqualification under the Representation of the People Act, Section 8(3).Also read: What Rahul Gandhi Said in the UK and Why It Hit a Raw Nerve of the BJP’sIndia’s political discourseA cursory look at the Indian law gives us some perspective about the offences that attract imprisonment of a maximum of two years: joining an unlawful assembly with a deadly weapon; rioting; impersonating a public servant; threatening a public servant with injury; giving false information with respect to an offence committed; making false claims in a court of justice; destroying and damaging a place of worship with an intent to insult the religion; using criminal force to deter a public servant from discharging his duty, etc.One can see the severity and nature of the crime in these offences.When one compares the punishment given for such offences to a two-year imprisonment for criminal defamation for a remark made during an election rally looks more of an overstretch, if not trivial.The legal opinions expressed by the judges of the Gujarat high court and district court seem to be at odds with the ways in which justice should be dispensed in democratic countries.The high court believes that it is need of the hour to have “purity in politics” and the representatives of people should be man of clear antecedents.While pending cases against Gandhi, including the one for passing remarks against V.D. Savarkar, muddies his reputation, and he being an MP, per the court, deserves the maximum punishment, can the same logic be applied to other members of parliament who have criminal cases pending against them?Some of the sitting MPs have made problematic statements against certain communities such as ‘kapdey se pata chal jaata hai ([He/she can be identified from the clothes) and ‘Desh kay gaddaron go, goli maaro … ko (What should be done with traitors of the country? Shoot them!’).Analysing the remarks made by the judges in this context make their logic look unobservant and oblivious to the political discourse in the country.Also read: 10 Times When BJP Leaders (Not Fringe) Made Anti-Muslim Hate SpeechesSarcasm versus mocking of a communityA snarky statement, laced with innuendos, not in a way to incite violence, but to make a person think and question, would naturally be part of a vibrant democracy. Such statements could be seen in movies, in common parlance, and even in politics. Labeling such expressions as moral turpitude sends a message to people to restrict themselves to a particular sanitised language and conform their thinking to a pro-establishment narrative.It remains unclear why the district court and Gujarat high court leaned towards what can be described as the doctrine of maximum punishment. The plea of maximum punishment is taken by the prosecution in rarest of rare cases or when a crime is heinous in nature or when a crime has huge societal impact. However, nothing of that magnitude appears to have happened in this case. The decision to award maximum punishment seems to stem from a harsh version of the theory of retributive justice, rather than being justified by anything else.In such a framework of thinking, a person dispensing justice assumes for himself or herself as the sole arbiter of social and political morality and runs the risk of vilifying the defendant. We need to ask if such a thing has happened in this case. And what was the intention in awarding maximum punishment? Did the judge want to deter the accused, or reform him, or strike him with retribution?India is hosting the G20 Summit. It is a good moment for us to learn from our peers. It is important to note that none of the powerful economies like the US and the UK have defamation as a crime in their countries.The UK decriminalised it in 2009 while the US did it in 1966. It is absolutely essential for people to freely communicate and publish materials discussing political and governmental issues. People planning to be elected need the opportunity to freely express themselves without fear of legal consequences.Politicians give voice to the anxieties and feelings of the people of a country. They raise issues of governance, economics, administration, and anything important. This professional hazard may bring them in conflict with the law while doing their job.As mentioned earlier, Gandhi had said: “How come all thieves have ‘Modi’ in their surnames?”The judge found this statement to be defamatory and hurtful to the reputation of the entire Modi community. The high court, in its judgment, reasoned that had Gandhi spoken at length about the behaviour of Lalit Modi and Nirav Modi, and the performance of Narendra Modi, then it might have not attracted such punishment. However, such a speech would have lost the punch and spontaneity of a political rally.It is also condescending to assume that common people would be unable to differentiate between sarcastic remarks and actual mocking of a community.At its worst, these words did not ‘mock’ any community, but three persons with the same surname. Then why invoke the doctrine of maximum punishment? This question of law is now before the highest court of the land.